Percipient Experts:

Preparing (or Avoiding) Suprises

By Michaelbrent Collings

This article appeared in the November 21, 2002 issue of

The Los Angeles Daily Journal under the headline

"Percipient Expert Witness Testimony Law is Undefined"

California Code of Civil Procedure §2034 (2034) establishes that a project design professionals, project inspectors, or former employees of a party may be designated as percipient expert witnesses. Because they are experts, they can provide potentially crucial information going to standards of care, proper courses of dealing, etc. Because they are percipient witnesses, they can be produced for trial without an accompanying expert declaration. This is potentially good news for attorneys who wish to surprise opponents at trial with a percipient witness who can also supply crucial and weighty expert opinions: opinions that have not been provided as a part of the expert declarations mandated for "retained" experts under 2034.

But those attorneys had better prepare for a challenge from opposing counsel, who will undoubtedly claim that the witness can only be examined as to what he/she saw and not as to expert opinions.

Expert opinions weigh heavily with juries, so the propounding attorney will undoubtedly want to get the expert testimony admitted. Additionally, since no advance declaration is required for these percipient experts, this presents a rare opportunity to "blow away" the opposition by presenting information they are utterly unprepared to counter.

However, determining whether a particular project design professional, project inspector, or former employee falls under the rubric of 2034 "percipient experts" is a matter of first impression. Therefore, the currently settled commonlaw (primarily concerned with treating physicians as percipient experts) must be examined to determine what factors a court will view in its analysis of prospective percipient expert witnesses. Put more simply: lawyers who want their percipient experts' testimony admitted as to both their eyewitness accounts and their opinions had better know how to make a strong case that the witnesses can testify to matters they saw and opinions related thereto.

In determining whether a witness is indeed a percipient expert, the courts appear to focus first on the manner in which the expert acquired his information: i.e., the percipient expert witness is an expert "who has acquired, independently of the litigation, personal knowledge of relevant facts, and whose training, skill, and experience enables him or her to form an opinion about those facts." Kalaba v. Gray (2002) 95 CA4th 1416. Thus, "[b]ecause a percipient expert is not given information by the employing party, but acquires it from personal observation, the current statute treats him or her as a fact witness." Huntley v. Foster (1995) 35 Cal. App. 4th 753. In other words, the percipient expert must not be "consulted for litigation purposes," but rather must have learned of the facts because of another relationship that underlies (and therefore precedes) the litigation. Schreiber v. Kiser (1999) 22 Cal. 4th 31, 35-36.

Because the percipient expert acquires information not from the party but from observation unmotivated by the litigation, the party seeking to utilize that testimony will not have to supply an expert declaration as to his prospective testimony. Id. Requiring otherwise would run afoul of work product protections: "Requiring an attorney to analyze [the] anticipated testimony and submit the analysis to the opponent would invade… the work product doctrine." Id.

Another reason behind allowing percipient experts to testify without making a declaration is that "[b]y contrast [to retained experts], the identity and opinions of treating physicians are not privileged." Kalaba. Unlike retained experts, which an attorney may decide to hire and then "bury" from the party opponent's view by deciding not to let them testify, the identities of percipient witnesses of all kinds are discoverable through production of records, requests for admissions, interrogatories, and the like.

Thus discoverable, percipient witnesses may be deposed or their opinions obtained through other discovery. Then, because a percipient expert's their knowledge of the facts is necessarily colored by their opinions, a deposing attorney would be wise to always ask any percipient witnesses who may be expert if they have formed any opinions based on the facts they have observed. See, e.g., Schrieber.

The ability of opposing counsel to discover the identities of percipient witnesses and to inquire through normal discovery as to their knowledge and opinions is a main reason behind not requiring such percipient experts to submit expert declarations per 2034. However, this does not imply that an attorney seeking to introduce such expert testimony has carte blanche and may with impunity draw forth an expert to the utter surprise of opposing counsel. Several steps should be taken to insure that the percipient experts will be able to testify at trial as to their expert opinions.

First of all, the percipient witness who will supply expert testimony should be listed as a testifying expert in a 2034 exchange of expert information. Schrieber. Though no declaration must be supplied, the expert's identity should be supplied to opposing counsel. Id. Without this knowledge, opposing counsel is unfairly hobbled. However, it then becomes that attorney's burden to discover the testimony that will be presented.

Furthermore, a general identification will not suffice. Kalaba. The expert should be listed in sufficient detail to allow opposing counsel to propound discovery regarding and/or depose the expert. Id. An expert witness exchange including a statement that "the party intends further to call any and all ex-employees involved in the job at issue" will likely not suffice: it is too general and does not permit the other party to pursue discovery on the indicated experts without great and oft-times prohibitive expense. Id.

To further assure having their percipient expert's testimony admitted, attorneys should not discourage or inhibit opposing attorneys from deposing the prospective expert, and may be well-advised to encourage the expert to fully prepare for and cooperate in any depositions opposing counsel may request. See Fatica v. Superior Court of Orange County (2002) 99 Cal. App. 4th 350.

The above rules regarding treating physicians may be applied fairly easily to design professionals and project engineers: all are not so much "employees" as contractors providing a certain service in a specified period of time. The application grows more tenuous, however, as one moves to ex-employee percipient experts. The above rules still likely apply, but the attorney should further distance the litigation from the witness, so as to show that the expert has acquired his knowledge truly "independently." He may well have received on-the-job training which qualifies him as an expert, but that differs from acquiring knowledge relating to the litigation which has been supplied by a party. In that case, the percipient expert may become a "retained" expert and if counsel has not supplied a statutory declaration, the expert's testimony may not be admitted.

Dillingham Construction, N.A., Inc., v. Nadel Partnership, Inc. (1998) 64 Cal. App. 4th, may illustrate this. In Dillingham, the court found that a defendant architect who had been found by a jury to be partially liable for defects in a construction project should be limited in his liability to the amount of his actual culpability. Several attorneys hired earlier by Nadel testified at trial, over objections that they had not been "properly designated." The trial court allowed their testimonies, but the appellate court later stated that "an attorney for the party seeking indemnification cannot be permitted to testify, after the fact, as to how he believes settlement proceeds would have been allocated had the parties negotiated and resolved the issue."

Though there is a strong implication that the experts were not designated as such, the court apparently ruled that a percipient expert cannot testify where there may be a conflict of interest or where the particular testimony relies on information garnered for the purpose of the litigation at issue. Thus, an attorney seeking to introduce a party's ex-employee's expert testimony should discourage any communications between that expert and the party or attorney that could be construed as supplying additional information outside that which the expert acquired on his own "before the fact" - i.e., before the litigation commenced or even loomed on the horizon.

Again, the above is in no wise certain. Percipient expert testimony law is virtually undefined, so conjecture is the strongest evidence on point. However, if the expert witness:

1) is identified through expert witness exchange;

2) is discoverable as to identity and opinions;

3) gained his/her knowledge and opinion through a pre-existing relationship, exclusive of the litigation; and

4) is not operating under a conflict of interests

it seems likely such experts will be permitted to testify as to the events they observed and as to their opinions of those events.

Of course, the above puts opposing counsel on notice, and wise attorneys will take care to follow up, deposing all percipient witnesses and asking those who even may have some expert credentials if they have formed any opinions about the facts they have observed. However, it is still possible - even likely - that from time to time an attorney will be able to earn his pay by providing a percipient expert - one prepared to supply damning evidence that opposing counsel didn't take the time or care to prepare for.